(dissenting).
The Interstate Commerce Commission’s order of December 9, 1924, requires the petitioner railroad to provide transportation service between the Erie Basin Barge Canal terminal in the city of Buffalo, on the one hand, and points and shippers located on said railroad company’s lines and on the lines of its connections, on the other hand, and to perform upon the tracks of said terminal the operating service necessary to an interchange of traffic with the Barge Canal1 lines at said terminal. The order did not require the making of a physical connection between the tracks of the petitioner railroad and the tracks on the Barge Canal terminal, for:the reason that the physical connection between the tracks of the petitioner railroad and the tracks on the Barge Canal terminal had been made by agreement with the state of New York, the owner of the *204terminal; and the Director General of Railroads while the New York Central was operated by the government under the Director General.
The statute. chiefly involved here is subdivision 13 of section 6 of the Interstate Commerce Act, which is as follows:
“(13) When property may be or is transported from point to point in the United States by rail and water through the Panama Canal or otherwise, the. transportation being by a common carrier or carriers, and not entirely within the limits of a single state, the Interstate Commerce Commission shall have jurisdiction of such transportation and of the carriers, both by rail and by water, which may or do engage in the same, in the following particulars, in addition to the jurisdiction given by the act to regulate commerce, as amended June 18, 1910:
“(a) To establish physical connection between the lines-of the rail carrier and the dock at which interchange of passengers or property is to be made by directing the rail carrier to make suitable connection between its line and a track or traeks which have been constructed from the dock to the limits of the railroad right of way, or by directing either or both the rail and water carrier, individually or- in connection with one another, to construct and connect with the lines of the rail carrier a track or tracks to the dock'. The Commission shall have full authority to determine and prescribe the terms and conditions upon which these connecting traeks shall be operated, and it may, either in the construction or the operation of such traeks, determine what sum shall be paid to or by ei- • ther carrier:
“Provided, that construction required by 'the Commission under the provisions of this paragraph shall be subject to the same restrictions as to findings of -public convenience and necessity and other matters as is construction required under section 1 of this act.”
The power .of the Commission under this statute to direct the construction of a physical connection, that is, a connecting track, and the operation of such track, in an appropriate case, is not seriously challenged. -The railroad company alleges that the facts shown here, however, do not make the statute operative, or, in other words, that the Commission had no jurisdiction in the instant Case. This is based chiefly on the contention that there were no interstate water common carriers before the Commission.
Two water carriers intervened in the proceeding, viz. .Rochester Terminal & Canal Corporation and Interwaterways Line, Inc., by a petition which appears in the record. The Commission held that their intervening petition was regular and in accordance with its rules. The Commission was authorized to make its own rules, and was competent to determine that the intervention ’was in accordance with such rules. The court should be concluded by the Commission’s determination. For this court to hold otherwise would almost usurp the power of the Commission to make and interpret its own rules.
The interveners described themselves as common carriers in their intervening petition, and the Commission so found. The fact' that they did not file a schedule of rates, or tariff of charges, with the Commission, is not serious. A plea of nonfiling would not be available as a defense in an action against them. Assuming that the court is not bound by the determination of the Commission as to the character of these water carriers, the evidence is sufficient to show that they are common carriers transporting freight moving in interstate transit.
Even if none of the boats of the intervening water carriers themselves move interstate, or transport freight which moves in interstate transit, nevertheless the rail carrier is an interstate carrier, and the statute would be satisfied by the carrying of freight which crosses the state line on the. defendant railroad’s cars and passes through this terminal for water ■ transportation for points in the state of New York having water connections. It would also be satisfied with shipments originating in New York state carried by water carrier to the terminal in question and then transported over the railroad lines to other states.
One of the plain purposes of the federal statute is the supplying of facilities for the exchange of interstate'water and rail traffic where no such facilities now exist, or, in other words, for the promotion of interstate commerce by compelling interchange between rail and water carriers, one or both being engaged in interstate commerce. Of course, there can be no interstate or other commerce by rail and water carrier through this terminal, if no one operates the connecting traeks on the terminal. It is clear, however, that there is potential interstate commerce at this point. The statute does not require the present existence of such interstate commerce by rail and water carrier or carriers. The statute is satisfied if there “may be” such commerce. There being potential rail and water interstate commerce through this terminal, and a physical connection between the lines of the rail carrier and the traeks on the terminal dock, to which the water carrier has access, it was within the *205power of the Interstate Commerce Commission to require the connection and the tracks on the terminal to he operated by the rail carrier.
The very ground of the decision in the state courts was that the potential traffic through this terminal was interstate, in part, at least, and therefore the Interstate Commeree Commission, and not the Public Service Commission of the state, had jurisdiction. People ex rel. N. Y. Central v. P. S. Com., 198 App. Div. 436, 442, 191 N. Y. S. 636, affirmed 232 N. Y. 606, 134 N. E. 590, without opinion,
The rail carrier is inconsistent in contending in this court that there is no interstate eommeree, even potential, which would pass through this terminal, and that therefore the Interstate Commerce Commission had no jnrisdiction to make the order in suit, after prevailing in the state courts on the ground that there was interstate commerce, and that therefore the state Public Service Commission had no jurisdiction.
True, the terminal dock and the tracks thereon, including the connecting track, belong to the state of New York; but the state of New York is not a common carrier (People ex rel. N. Y. Central v. Pub. Ser. Comm., supra), and it has no equipment for the operations specified in the order of the Interstate Commerce Commission. l’£ the terminals and tracks thereon are part of the canal system of the stale, then the state, if it could render such transportation service, would be required to render the service gratis, for section 9 of article 7 of the slate Constitution prohibits the imposing of “tolls” on persons or property transported on the eanals.
The act under which the funds for the Barge Canal terminals and tracks thereon were authorized, the terminals and railroad tracks constructed, and their use regulated, in substance puts these canal facilities, along with the canals of the state, under the jurisdietion of the canal board of the state. Chapter 746, of the Laws of 1911, approved by referendum of the people of the state.
Water carriers are not usually equipped to operate railroad tracks. It follows, therefore, that, if the connection here is to be operated at all, it must be by the petitioner railroad, which is equipped for such operation.
Even if this bo viewed as an order which compelled the rail carrier to extend its tracks, to which view the writer does not subscribe, nevertheless by other sections of the same statute such power resides in the Commission. This power is contained in paragraph 21 of section 1 of the act (Comp. St. Supp. 1925, § 8563). Such of the cases cited by counsel for the railroad company, on the theory that the order of the Commission requires an unlawful extension of its tracks, as were decided sinee the act in question, are not in point, and the physical situation in the cases 'cited is clearly distinguishable from the situation in the instant case. The prior cases, of course, can have no hearing.
The requirement that such extension could not be made, unless the Commission should find that it was in the interest of public convenience and necessity, is met by the finding of the Commission to that effect. That the petition was originally made by the representative of the state of Now York, having eertain duties relating to the Barge Canal, is not serious. There were intervening water common carriers, and the proceeding might have been instituted in the first instance by the Interstate Commerce Commission of its own initiative, under section 13 of the act in question (section 8581 (2) of the Compiled Statutes).
The fact that in the order under considera - tion the Commission has made no provision for the payment of any sum by the water carrier to the rail carrier is unimportant. There is no construction cost to be apportioned, The operation cost will presumably be paid by the shipper. Thus there will apparently be nothing to be paid by the water carrier. If, in the course of the operation of the eonnection, undue expense to the rail carrier results, the jurisdiction of the Commission to apportion some part thereof upon the water carrier, by means of rates, or otherwise, remains to be made effective at any time,
The lack of a provision in the order fixing the rates to he charged for the service is of no moment hero. If the rates charged by the railroad shall be deemed excessive, it is within the power of the Interstate Commerce Commission to fix the rates, and to apportion the expense of operating the connection between the rail and water carrier in the fixing of through rates.
The question of subjecting the railroad company to liability for damages arising from operating the tracks upon the property of the state is not a serious one in the determination of the matter now before the court. The state maintains its canals, and no assumption can |airly be made that it will not properly maintain its canal terminals. The contract for the construction and operation of the terminal tracks in question between the state and the Director General of Railroads, while the railroads were operated by the federal government, expressly provided that the state should *206maintain the tracks on this terminal. This contract is probably not now in effect.
Even if the state should not properly maintain this terminal, and the tracks should become dangerous to operate, such tracks might well be maintained by the railroad, and if not collectible from the state, the expense of such maintenance, like the expense of maintaining its- own right of way, might become an important factor in the fixing of the rates to be charged for the service, and may also be apportioned between the rail and water carriers.
Moreover, the jurisdiction of the Interstate Commerce Commission' is continuous, and it may. from time to time alter or modify the terms on which the connection shall be operated. If the state should not maintain its terminal tracks, the Interstate Commerce Commission has the power to rescind its order, if the service required would, because of nonmaintenance by the state, be unduly burdensome to the railroad, or to the water carriers, or to both.
No presumption may be indulged in that the railroad will not be treated fairly by the Commission.
The writer is unable to agree with the majority of the court, and holds that the order was within the jurisdiction of the Interstate Commerce Commission, and that the injunction should be denied.